In Luo v. Wang, No. 22-1200 (10th Cir. July 3, 2023), a rare published opinion about the revocation of a pseudonym in a civil case, the Tenth Circuit affirms the lower courts reconsideration of the plaintiff’s use of the “Jane Doe” appellation when it came to light that the plaintiff had been seeking media attention for the case.
Luo filed a tort action against Wang in Colorado, alleging defamation, intentional infliction of emotional distress/outrageous conduct, and unreasonable disclosure of private facts about her being the victim of a sexual assault (not by the defendant). Before defendant was served with the complaint, the district court (a magistrate judge) had ordered that plaintiff be allowed to litigate as a “Jane Doe” and entered a protective order (PO) about the plaintiff’s identity. When defense counsel appeared, “Wang’s counsel raised at a status conference ‘the issue of the Jane Doe status that has been granted here without the discussion of the realities of what Ms. Doe has been doing in various litigations.’”
Defendant filed a motion to reconsider with ”almost 400 pages of exhibits about (1) other litigation Ms. Luo had filed using a pseudonym (collectively, Ms. Luo’s “Jane Doe cases”) and (2) a California domestic-relations restraining order against Ms. Luo and her related criminal conviction” for supposedly violating that restraining order. On the ground that this was new information previously unavailable to the court, the magistrate judge reopened the anonymity order and held that the balance of “the balance of all facts before the Court weighs in favor of disallowing [Ms. Luo] from continuing to proceed under ‘Jane Doe.’” The magistrate judge thereafter granted a motion by a third-party intervenor, Prof. Eugene Volokh of UCLA School of Law, to un-restrict the filings in the docket related to defendant’s motion to reconsider.
“The district court . . . affirmed the magistrate judge’s conclusion that, on balance, the facts weighed against permitting Ms. Luo to proceed under a pseudonym. The court observed Ms. Luo never denied the information in the declarations from the defense counsel in her Jane Doe cases. According to the district court, (1) Ms. Luo had contacted the media herself about one of her Jane Doe cases, and (2) she had posted online about the subject matter of this litigation.”
The Tenth Circuit affirms, finding no abuse of discretion. (The interlocutory appeal was brought under the collateral-order doctrine and 28 U.S.C. § 1291.) The panel notes that anonymity is the exception, not the norm, in federal litigation. Rather, Federal Rule of Civil Procedure 10(a) requires the names of all parties to appear in the caption of a complaint, and the title of all other pleadings must name the first party on each side.” But the panel also observes that federal courts had long carved out judicial authority to permit a plaintiff to proceed anonymously “in those exceptional cases involving matters of a highly sensitive and personal nature, real dangers of physical harm, or where the injury litigated against would be incurred as a result of the disclosure of the plaintiff’s identity.”
After overruling plaintiff’s objections to the timeliness of defendant’s motion to reconsider, the panel weighs the merits and found no abuse of discretion. “The magistrate judge pointed to Ms. Luo’s other Jane Doe cases involving similar circumstances; Mr. Wang’s contention she is a vexatious litigant, which affects her credibility; Mr. Wang’s allegation that Ms. Luo has disseminated sensitive material about him; prejudice to Mr. Wang from having to defend himself publicly while Ms. Luo remains anonymous; and the lessened need to divulge details about the sexual assault because Mr. Wang is not the accused.”
The panel notes that none of the conventional grounds for anonymity applied here. Plaintiff alleged “exceptional circumstances” because the core of her case was to prevent the spread of personal information about her. But the panel finds it significant that plaintiff’s complaint did not request an injunction (against further release of sensitive information) but only damages. “We are persuaded . . . that the injury she litigated against— Mr. Wang’s previous alleged defamation and disclosure of her private information— would not be incurred because of the disclosure of her identity in this case.”
The panel also holds that the risk of re-victimization, stigma, and public scorn – while “valid” – were outweighed by prejudice to defendant and to the public interest. “In finding this is not a typical case involving facts related to sexual assault,” because defendant was not himself the alleged assailant, “the magistrate judge pointed to Mr. Wang’s assertion that Ms. Luo had disseminated sensitive material about him. He concluded Ms. Luo’s anonymity would (1) hinder the public’s interest in reaching its own conclusions, and (2) result in prejudice to Mr. Wang if he had to defend himself publicly while she remained anonymous, despite Mr. Wang’s contention she had disseminated sensitive material about him. In affirming the MJ Order, the district court also referenced the undisputed evidence of Ms. Luo’s litigation conduct in her other Jane Doe cases, her online posting about the subject matter of this litigation, and her effort to seek publicity about another Jane Doe case.”
The panel specifically holds, citing an array of lower court opinions, that (1) “seeking publicity can be seen as inconsistent with a stated desire to conceal a private matter”; (2) it weighs against the plaintiff that “she is a vexatious litigator and that her conduct in her other cases justified the public’s right to know her identity”; and (3) because plaintiff “posted sensitive material” about defendant, the “ allegations of wrongdoing in this case are not one sided.” (The panel, in a small win for plaintiff, granted her relief by restricting some parts of the district and court of appeals dockets.)
Paul Mollica's Federal Courts Blog 